Property Rights vs. Federalism?
Jacob Sullum | September 6, 2006, 1:34pm
The Castle Coalition warns that time is running out for the Senate to approve the Private Property Rights Protection Act, which is aimed at discouraging state and local governments from using eminent domain for economic development—i.e., forcibly transferring property from one private owner to another with the aim of generating jobs and tax revenue. Under the bill, which the House approved last year by a vote of 376 to 38, governments that engage in such projects would lose federal economic development funds for two years.
Because I cling to the notion that liberty is better served over the long run by faithful application of constitutional principles than by ditching them when they're inconvenient, I have mixed feelings about this bill. On one hand, it's disconcertingly similar to other federal attempts to dictate state or local policy by threatening to withhold money, such as the imposition of a de facto national alcohol purchase age and a de facto national speed limit, both of which constitutionalists objected to as violations of federalism. On the other hand, one could argue that in this case Congress is enforcing the correct reading of the Fifth Amendment's "public use" requirement, which the Supreme Court misinterpreted in Kelo v. New London, the decision that prompted the bill. (This position is reminiscent of the argument that the Protection of Lawful Commerce in Arms Act, aimed at pre-empting state lawsuits that blame gun manufacturers and dealers for crimes committed with their products, was justified as a way of enforcing the Second Amendment—a claim I did not buy because the threat the litigation posed to gun rights seemed too speculative.)
You could also say there's a close connection between economic development funding and the sort of eminent domain abuse this bill targets. Then again, supporters of the drinking age and speed limit mandates made a similar argument about the highway funding they threatened to withhold from uncooperative states. I'd be more comfortable if the bill simply refused federal funding for projects that rely on the misuse of eminent domain, as opposed to withholding economic development money generally. Abolishing federal economic development grants altogether would be even better, since it's hard to find constitutional authority for them. But now I'm talking crazy.
Paul | September 6, 2006, 10:57pm | #
Neu Mejican:
First:
Donde Vive?
No mas. I'm a native of Southern New Mexico, born at White Sands Missile Range (WSMR- military parents) and grew up in Las Cruces. I now reside in Seattle.
These are strange regulation heavy attempts (pushed by libertarian groups, strangely) to overburden government programs involving ED with red tape in the hopes they will result in less government programs.
I disagree on the 933 initiative in Washington. The text is as follows:
This measure would require compensation when government regulation damages the use or value of private property, would forbid regulations that prohibit existing legal uses of private property, and would provide exceptions or payments. Should this measure be enacted into law? Yes [ ] No [ ]
This is in a direct response to a little early morning machination by the King County Council that said that 35% to 50% of all rural land in 'critical areas' also known as the CAO or "Critical Areas Ordinance" must remain with native vegitation and in essence, not be touched by the owner.
This is one of these issues where the government doesn't 'take' your land, they just show up on the doorstep and tell you to quit using it.
The reason we libertarians support this is because the CAO was seen as a kind of final straw in environmental protections (some good, some bad) Gone Wild(tm). It was, as you guessed, overwhelmingly supported by over-educated urban dwelling latte sippers (yours truly minus the over-educated part) whose land would never be touched by such an ordinance because 'we already got ours'.
Rural land 'owners' are-- shall we say-- less than pleased. Lawsuits a plenty have followed.
Here's where I stand on this issue... exactly.
We want environmental protections. Especially us latte sipping urban dwellers who already 'got ours'. Fine. But we don't want to pay for them. Environmental protections cost in terms of lost production and in the most extreme cases, lost rights. If I'm going to support a measure which takes away large chunks of viable property from individual owners, should I be willing to pony up some money? Because remember, it doesn't cost 'The State' a dime. The State has no money, they simply have my money. If my taxes go up if this initiative passes, I won't complain. Well, I will because I thought it a foolish thing for KC to do-- but in the big picture, I'll accept it as a Responsibility of a resident of King County.
And more importantly, the initiative doesn't say the state can't invoke such rules, it merely states that compensation must be paid-- no more unfunded mandates to property owners. So pass all the development blocking rules you want on people that bought their land 20 years ago and planned to put up a mother-in-law house. But be prepared to pony up.
